Archive for the 'Copyright' Category

MPR: Minnesotans are part of the copyright controversy over lawsuits alleging illegal porn downloads

May 20, 2013

Minnesota Public Radio’s Martin Moylan has a nicely done piece involving tactics that porn companies and their lawyers are using to combat what they see as copyright violations involving downloads.

Similar efforts exist involving owners of stock photos who, for example, sue mom-and-pop businesspeople over photographs that web-site builders used without the owner’s consent.  I’ve represented one such Minnesota business, and there are many more who need help.

The statutes authorizing lawsuits over such alleged illegalities typically have attorneys’ fees provisions in them, so such litigation can be attractive to lawyers.  The potential defendants in a tough spot:  pay up a settlement, or pay a lawyer to try to defend the case.


10 steps bloggers should take to avoid getting sued

September 21, 2012

Being sued over blog posts is bad, and being threatened with legal action can be just as bad.  Saturday morning, at the 2012 Minnesota Blogger Conference, I am presenting on …

10 steps bloggers should take to avoid getting sued

1. Tell the truth

Libel is a claim that a communicator has harmed someone’s reputation by publishing something false.  So truth is the ultimate defense to a libel suit.   A blog post that says horrible things about someone is not libelous if it is true.

2.  Report for jury duty

Sometimes even false posts are legally protected.  That’s because a jury ultimately decides whether the blogger did “what a reasonable blogger would do” under the circumstances.

3.  Focus on the famous

Politicians, celebrities, and other public figures must prove “actual malice” to win a libel suit.  So if you stick to writing about famous people, the risk of legal liability decreases.

4.  Act like the AARP era

Most of a blogger’s legal defenses were enacted with the Mainstream Media in mind.  So emulate the “AARP” generation by Avoiding Anonymous Sources, Attributing Information, Retracting When Necessary, and Publishing Regularly.

5.  Know when truth doesn’t matter

Bloggers do risk liability for publishing true information if doing so is an invasion of privacy.  So don’t publish Social Security numbers or bank-account information, and tread carefully with racy pictures.

6.  Stay local

Most laws governing bloggers are state laws, enforced separately and differently in each state.  So posting about people outside Minnesota increases the chance, complexity, and cost of litigation.

7.  Keep SLAPP in the face

Minnesota is among states with laws that protect against “SLAPP” lawsuits, which are Strategic Lawsuits filed to prevent Public Participation.  The SLAPP laws provide extra protection to bloggers who write about public issues

8.  Picture a troll

“Copyright trolls” patrol the internet, looking for material used without the owner’s permission.  Bloggers are easy prey.   Know where your pictures come from, and get permission to publish if necessary.

9.  Act in moderation

Some believe that bloggers can avoid legal liability by not moderating comments.  I disagree.  Moderate your comments and remove the dicey ones.

10.  Blog as a matter of policy

Read your business and homeowners’ insurance policies for whether you’re covered if you’re sued.  Consider purchasing a separate policy for bloggers.

Big Minnesota win for big record companies

September 13, 2012

Record companies spun a big win this week in a case involving the Brainerd, Minn. woman who allegedly downloaded and shared a couple dozen copyrighted songs.

The Eighth Circuit Court of Appeals ruled that it was not unconstitutional to impose a $220,000 penalty on Jammie Thomas-Rasset because the damages were not “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”  By doing so, the appeals court reversed the trial judge’s reduction of the award to $54,000.

For support, the Eighth Circuit cited the 1984 landmark case of Sony v. University City Studios, where the United States Supreme Court cleared the way for homeowners to use videocassette recorders to record shows off TV.  The Eighth Circuit then explained:

With the rapid advancement of technology, copyright infringement through online file-sharing has become a serious problem in the recording industry. Evidence at trial showed that revenues across the industry decreased by fifty percent between 1999 and 2006, a decline that the record companies attributed to piracy. This decline in revenue caused a corresponding drop in industry jobs and a reduction in the number of artists represented and albums released.

Thomas-Rasset’s lawyers have vowed a Supreme Court appeal, and I can’t blame them–even though copyright infrinigement is a big deal.

Lost in such cases, though, is a painful truth:  While the record companies can come away big winners, the creative artists who frequently have to surrender their copyrights are the ones who get left behind.

Shakopee bar owner prevails in bout against UFC

August 17, 2012

A federal judge ruled this week that a Shakopee bar owner could not be personally liable for allegedly showing an Ultimate Fighting Championship bout in his establishment.

The fight, between Quinton “Rampage” Jackson and Keith Jardine, took place back in 2009, but it took until this past Tuesday for the personal-liability issue to work its way through federal court.

Judge Richard H. Kyle ruled that the pay-per-view broadcast’s owner, Joe Hand Promotions, Inc., had not demonstrated that there was “no distinction” between the corporate entity of Kelley’s Bar and the entity’s owner.

Score one for the little guy.  And it’s no small thing.  As Bloomberg News explains, hundreds of such lawsuits are filed each year:

The companies send investigators into bars and restaurants the night of an event to gather photographic or video evidence that the establishment showed it without paying the fee.

The price for watching a pay-per-view boxing event at home might be $50, while businesses typically pay $1,500 to $3,000 or more depending on the size of the venue, said Joseph Gagliardi, president of J&J Sports Productions Inc., which promotes boxing matches.

Showing a boxing match, soccer game or mixed martial arts event without paying the commercial fee could potentially result in a bar or restaurant owner getting hit with a $260,000 bill.

BMI sues bar in Shakopee, alleging copyright infringement

November 8, 2011

Music-licensing company BMI today filed its third copyright-infringement case this month, again alleging a Minnesota establishment has permitted popular music to be performed without paying for the right to do so.

The bar in question is the Pullman Club in Shakopee.  The complaint and an exhibit filed in federal court in Minnesota allege the establishment did not pay for the right to perform Brown Eyed Girl by Van Morrison, Folsom Prison by Johnny Cash, Rocket Man by Elton John, and three songs attributed to Mick Jagger and Keith Richard:  Honky Tonk Women, Jumpin’ Jack Flash, and Paint It Black.  The alleged copyright infringement occurred Sept. 10, 2011.

As I posted previously, earlier this month BMI filed lawsuits alleging copyright infringement at establishments in Anoka and Jordan.

Says the Strib: Pay up

October 31, 2011

With the end of October comes the end of free online access to the Star Tribune.  Tomorrow begins a test of whether Minnesotans are in the mood to pay news contained in the state’s largest newspaper.

Well, that’s a bit of a misnomer.  No one can be asked “pay for news” because no one “owns” the news.  Copyright law protects only the way the news is written and otherwise presented.  No one can own facts.  Still, the Strib most certainly owns the way it writes about and presents the facts.

It will be interesting to see what, if any, effect the subscription arrangement has on websites such as, which provides hyperlinks to full stories in media across Minnesota.  Also, bloggers who cut and paste Strib content word-for-word into their blogs could face increased scrutiny and potential legal liability.

But arguably, it’s time for a generation of news consumers who have grown up assuming news is “free” to learn a hard reality:  gathering and presenting the news takes time, and effort, and talent.  And people who work in the news biz deserve and need to be compensated for their efforts.

Joe Buck plagiarized, but did he violate dad’s “copyright” (theoretically speaking)?

October 28, 2011

Pretend for a moment Major League Baseball didn’t own the copyright to World Series broadcasts. Did Joe Buck violate his dad’s “copyright” last night by plagiarizing the famous Minnesota Twins “we’ll see you tomorrow night” call from 1991’s famous Game 6?

Whether it was a tribute to dad or a lapse in creativity, last night’s plagiarism was glaring.  (Compare the 1991 call here with the 2011 call here.)

Son did nothing to add to dad’s creativity — a requirement for there not to be copyright infringement.  It sort of reminds me of Vanilla Ice ripping of Queen and David Bowie’s baseline from “Under Pressure,” a copyright case that ended in a big settlement.

It’s all theoretical, of course, given that MLB can’t sue itself.  And it was a spur-of-the-moment thing.  But still, c’mon Joe, add some value to your dad’s Minnesota Twins call.


Music ranging from “Ring of Fire” to “Billie Jean” cited in MN copyright suit

October 27, 2011

Ring of Fire, Walk Like an Egyptian, and Billie Jean are among a potpourri of songs that two Twin Cities-area taverns are accused of playing without paying for the rights to do so.

Music-licensing company BMI started copyright-infringement lawsuits in Minnesota federal court last week.  The Defendants are  bars called Brewers of Jordan (in Jordan) and Courtside Bar & Grill in Anoka.  (The complaints are here and here, and exhibits here and here.)

Ring of Fire is among the songs both bars are accused of playing, back in early August.  The list of other songs Brewers allegedly played reads like a middle-aged dad’s iTunes library on shuffle:  Billie Jean, Cover of the Rolling Stone, Have Mercy, Mama He’s Crazy (a/k/a Mama She’s Lazy), Mammas Don’t Let Your Babies Grow Up to be Cowboys, Mountain Music, Proud Mary, Simple Man, Something to Talk About, Walk Like an Egyptian, Watermelon Crawl, One of these Nights, Snow Hey Oh, and Little White Church.

The lawsuit alleges the Anoka bar played four songs, including Ain’t No Sunshine, Simple Man, and Jumper.

BMI’s website explains that it “collects license fees from businesses that use music, which it distributes as royalties to songwriters, composers & music publishers.”   Companies that own the various copyrights are listed as plaintiffs, too.  And in the Brewers suit, so are “sole proprietor” artists Kenny O’Dell, Shirley Eikhard, Glenn Frey, and Obed Wayne Kirkpatrick.

The cases are the musicians’ to prove.  But the lawsuit does draw attention to an often-understood reality about music and downloads:  we don’t own the songs.  Instead, we own a license to listen to the songs we “purchase.”   Purchasing music for use at home, in the car, etc. does not necessarily mean the music can be used for commercial purposes.

Yes, the law probably protects even light-bulb photographs

October 26, 2011

A Maple Grove company that sells light bulbs on the internet is asking a Minnesota federal judge to order a competitor to stop using its light-bulb photographs on its website.

Service Lighting, which began selling on the internet in 1996, filed its copyright infringement lawsuit on Tuesday.  The lawsuit alleges that Ohio-based has failed to remove the photographs from its website despite repeated demands.

According to the complaint, Service Lighting has aggressively protected its copyrights by making more than two dozen demands for other retailers to remove the pictures from their websites.  But the lawsuit alleges that has not complied.

Are simple photos of light bulbs protected by copyright law?  Likely, yes.  A photograph has to have some creativity for copyright law to apply, but the creativity need be only minimal.  It doesn’t need to be a great work of art.

Of course, that means bloggers and social media types are violating copyrights all the time.  Facebook friends who choose, say, a Minnesota Lynx logo as a Facebook profile pic technically are committing copyright violations (unless they had permission from the Lynx to do so).

But in reality, companies and other copyright owners rarely enforce their copyrights — unless the alleged violator tries to make a buck.  And that is what is alleged to be happening here.

The case has been assigned to Judge Patrick Schiltz.

Minnesota Website Battle Breeds Copyright Question

May 24, 2009

Claiming a copyright and suing for copyright infringement are two different things.  As I’ve stated in my Copyright Q&A, a writer, photographer, or website creator owns a copyright in the article, picture, or online content is written, taken, or designed.

Going to court to seek money for copyright infringement, though, requires complying with copyright “registration” requirements.  Problem is, the law is unclear on whether a copyright is “registered” at the time the copyright claimant sends in the application, or at the time the copyright certification is in hand.  Last week, St. Paul-based federal judge Donovan Frank confronted that very question — in some ways a dry one that only a lawyer could love, but in other ways a highly important question given that creative content on the internet continues to proliferate.

At issue in Tri-Marketing, Inc. v. Mainstream Marketing Services, Inc. are websites that the telemarketing firms maintain.  The lawsuit is about whether one firm illegally copied the website of the other.  Judge Frank explained that the Eighth Circuit Court of Appeals (which issues decisions governing Minnesota-based federal courts) had not decided the issue.  However, he ruled that the court likely would come down on the side of the “broader approach” — the approach suggesting that as long as the registration check is in the mail, a lawsuit may be maintained.

Federal courts are split on whether Judge Frank was right.  Eventually, the issue might end up in the Supreme Court.  We’ll see.